Ring around the ballot

If four same-sex union measures make the ballot, Colorado makes history

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This fall, Coloradans will decide up to four ballot measures regarding a single, volatile issue: same-sex partnerships. It's an unprecedented yet fitting scenario in a state that, 14 years ago, became a battleground for Christian fundamentalists and gay-rights activists polarized by a voter-approved initiative that earned Colorado the "hate state" moniker.

"In some ways, this is 1992 all over again," says Denver lobbyist and attorney Pat Steadman, who helped draft a 2006 initiative that supports domestic partnerships for same-sex couples. "Here we go again, using a ballot initiative targeting gay people to bring out the base, and influence an election."

A sense of dj vu may be the only thing Steadman and retired Colorado Springs car dealer Will Perkins have in common. Now a proponent of an initiative that forbids the state from creating or recognizing "a legal status similar ... to marriage," Perkins was a key player in the 1992 passage of Amendment 2, which banned laws protecting gays from discrimination.

Perkins' group, Colorado for Family Values, packaged the measure as a ban on "special rights" and minority status for gays.

The U.S. Supreme Court, however, disagreed. In a 1996 decision declaring the measure unconstitutional, the court concluded just the opposite: that Amendment 2 aimed to exclude gays from "ordinary civic life."

"Its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects," the court wrote. "It lacks a rational relationship to legitimate state interests."

Come November, Coloradans may have to decide whether the same is true of the current Perkins measure, which gay-rights advocates have dubbed "Son of Amendment 2." They may also evaluate Initiative 83, which reiterates Colorado's statutory definition of marriage as the union of one man and one woman. On the other side, there's Referendum H, which authorizes the creation of same-sex domestic partnerships, and Initiative 139, which counters Perkins' measure.

Stirring emotion

To date, Referendum H, a change to state law approved by the general assembly in May, is the only measure assured a place on the ballot. Each of the other three which would amend the constitution must attract 67,829 valid signatures by Aug. 7 to win a spot.

If all succeed, it will mark the first time in Colorado history that voters have been asked to decide so many measures concerning a single social issue. And it will be the first time any state has asked voters to decide competing measures concerning same-sex unions.

Another likely first? An unprecedented amount of voter confusion and the possibility that conflicting measures will pass. Should that happen, the one with the most votes prevails.

But Boulder attorney Jean Dubofsky anticipates another scenario.

"There are so many initiatives, that probably everything will go down," says Dubofsky, who argued against Amendment 2 before the Supreme Court. "It's unlikely that anything will pass if voters are not sure what to do or don't care much."

Supporters of the initiatives will do their best to make voters care though truth and transparency are already being sucker-punched in the battle to stir emotion.

Perkins calls his group Protecting Colorado Children a confusing designation for voters whose concern extends to the estimated 6,000 Colorado kids being raised by same-sex couples.

Initiative 83 backers call themselves Coloradans for Marriage, though they are, more accurately, Coloradans for Heterosexual Marriage. (Or, as one pro-gay group suggests, Coloradans for Marriages In Which "Here Comes The Bride" Doesn't Need to Be Either Pluralized or Altered.)

A Focus on action

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Coloradans for Fairness and Equality spokesman Pat Steadman.

Both groups can expect plenty of help from Focus on the Family. Focus founder James Dobson who earlier lent his organization's considerable clout to the push for Amendment 2 recently told his daily radio audience that "marriage is under vicious attack ... from the forces of hell itself" and that its destruction presages the decline of Western civilization.

Focus on the Family Action, the ministry's separate lobbying arm, has contributed $55,000 so far to Coloradans for Marriage and $2,000 to the recently formed Protecting Colorado Children, says Jim Pfaff, the organization's national representative for family policy councils. In addition to funneling cash to the initiatives, Focus will make certain that "all of our constituents know exactly what's going on," Pfaff says.

The 800-pound gorilla on the other side is the pro-gay Gill Foundation, which through Gill Action has contributed $179,000 to Coloradans for Fairness and Equality, an action fund formed last November to support domestic partnerships.

Expect the CFE campaign, also, to play to emotion. Television spots the group is airing feature a worried man barred from his partner's hospital room, and a baby whose future ability to care for loved ones is threatened because he was "born gay."

In fact, gay couples who can afford an attorney may establish legal contracts that confer some benefits associated with marriage including hospital visitation rights though the process is piecemeal and the results more susceptible to legal challenge.

Likewise, researchers remain uncertain of what determines sexual orientation, though most credit a combination of genetic, biological, psychological and social factors.

Here's a preview of things to come:

Initiative 83

Shall there be an amendment to the Colorado constitution, concerning marriage, and, in connection therewith, specifying that only a union of one man and one woman shall be valid or recognized as a marriage in Colorado?

Bishop Phillip Porter says an amendment to the Colorado constitution reiterating existing marriage law is necessary because the law is a legislative item and "not the people's voice." A constitutional amendment, he says, will protect marriage from "activist" judges.

Porter is a prominent black pastor and president of Coloradans for Marriage; he recently appeared with Dobson on a radio broadcast dedicated to the proposed marriage amendment.

It's a natural alliance, given the traditional view of marriage shared by the men.

Focus declares marriage to be "a sacred union, ordained by God to be a life-long, sexually exclusive relationship between one man and one woman" and opposes any legal sanction of "marriage counterfeits," a term it applies to same-sex couples, cohabiting couples and any other non-marital relationship.

Porter is chairman emeritus of Promise Keepers, an evangelical men's movement whose take on marriage stresses male responsibility and authority.

"The husband is called the head of the family, the head of the wife," the father of eight told a 1996 Promise Keepers gathering in Denver. "God created it that way. That means for the working out of the marriage, the husband has been given authority in every area."

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Initiative 109 author Will Perkins.

If this authority is exercised with the proper love and respect, Porter told the men, wives will feel satisfied, loved and more able to "devote themselves to our attention and the attention of our children."

Porter's confidence in the biblical approach to marriage isn't supported by divorce statistics. According to a 2004 study done by The Barna Group, a Christian research organization, born-again Christians are just as likely to divorce as non-Christians. Among the largest Protestant denominations, Pentecostals had the highest divorce rate.

Still, Porter's definition of marriage and family does not countenance same-sex couples and their children. "Those families, those children, are a misnomer," he says. "They should never have been ... They didn't beget them [as a couple]."

Married couples with non-begotten children, those either adopted or from previous unions, are different, Porter says, because "they have done it correctly" in accordance with the one-man, one-woman model put forth in Genesis.

Referendum H

Shall there be an amendment to the Colorado Revised Statutes to authorize domestic partnerships and, in connection therewith, enacting the "Colorado Domestic Partnership Benefits and Responsibilities Act" to extend to same-sex couples in a domestic partnership the benefits, protections and responsibilities that are granted by Colorado law to spouses, providing the conditions under which a license for a domestic partnership may be issued and the criteria under which a domestic partnership may be dissolved, making provisions for implementation of the act and providing that a domestic partnership is not a marriage, which consists of the union of one man and one woman?

Proponents: Approved by a 38-27 vote in the House; "yea" votes included 34 Democrats and four Republicans. Passed by a 19-16 vote in the Senate; "yea" votes included 18 Democrats and one Republican.

As a referred bill (HB 1344), The Colorado Domestic Partnership Benefits and Responsibilities Act is the only measure assured a place on the 2006 ballot. Unlike the initiatives, the referendum changes state law, not the constitution.

The act's language extends to same-sex couples the benefits, protections and responsibilities afforded by Colorado law to spouses "consistent with the principles of equality under law and religious freedom embodied in both the United States Constitution and the constitution of this state."

Exceptions include adoption, in that the act allows child-placement agencies with religious objections to refuse to place a child with domestic partners; and an exclusion of domestic partners from the filing of joint state tax returns.

Initiative 109

Shall there be an amendment to the Colorado constitution prohibiting the creation or recognition by the state or its political subdivisions of a legal status similar to that of marriage, as described in the "Uniform Marriage Act" in the 2005 version of the Colorado Revised Statutes?

Proponents: Will Perkins; Rep. Kevin Lundberg (R-Berthoud)

Implications: Aimed at nullifying domestic partnerships. Could threaten existing domestic-partner benefits (including medical and dental insurance) at state entities such as the University of Colorado.

Will Perkins, who in 1992 led a successful campaign to pass Amendment 2, sees the battle over same-sex marriage as a continuation of a campaign by homosexuals to win minority status.

"What we're seeing now, we talked about 14 years ago," Perkins says. "People now can realize that we talked about marriage, we talked about minority status, we talked about all of those things that were involved in Amendment 2. We anticipated [the push for same-sex marriage rights]."

In Perkins' mind, the "minority status" argument goes like this: Marriage confers preferential treatment, as does minority status. Hence, gays hope to achieve minority status by winning the right to marriage or marriage-like arrangements, including domestic partnerships.

Minority status translates into protection that, among other concerns, would give gays expanded power to influence school curricula, according to Perkins, who says his prime concern is protecting children.

"The state gives marital benefits because it benefits from marriage, it benefits from the fact that the [one-man, one-woman] family is the best environment to raise children ...

"In protecting children, you need to protect the structure of the nuclear family ... that is the main issue involved."

Research, however, contradicts the view that children should not be raised by same-sex parents. An American Psychological Association research summary published in 2004 found that same-sex couples are similar to married couples in their approach to parenting, and that their children are similar in significant developmental areas, including mental health, social adjustment and formation of sexual identity.

"Beliefs that gay and lesbian adults are not fit parents ... have no empirical foundation," the report said. A fact sheet published in 2000 by the U.S. Department of Health and Human Services reached the same conclusion.

Initiative 139

Shall there be an amendment to the Colorado constitution concerning the establishment of domestic partnerships and, in connection therewith, declaring that domestic partnerships do not affect the institution of marriage between one man and one woman, stating that notwithstanding any other provision of law a domestic partnership is established as a unique and valid relationship between eligible adults of the same sex and is not similar to marriage, and directing the general assembly to enact implementing legislation consistent with the responsibilities, benefits, and protections and licensing provisions for domestic partnerships set forth in House Bill 06-1344 as passed by the Colorado general assembly?

Proponents: Coloradans for Fairness and Equality

Implications: Counters the language of Initiative 109 by declaring domestic partnerships not similar to marriage.

"Initiative 139 came about to protect our investment in HB 1344," says Denver attorney and lobbyist Pat Steadman, who represents Coloradans for Fairness and Equality.

In response to Initiative 109, Initiative 139 uses the same "similar ... to marriage" language, though it's nonsensical to argue that a measure conferring most of the benefits and responsibilities of spouses on same-sex partners does not create a legal status similar to marriage.

Steadman explains it like this: "We are trying to create some record during the course of this election campaign to help guide those so-called activist judges ... if they would ever be called on to interpret 'similar to marriage.' It is a vague, nebulous, loosey-goosey legal standard up for grabs ... So we are all taking positions on it during the campaign."

He notes important differences between the proposed domestic partnerships and marriage, including the religious exemption for adoption agencies and exclusion from joint state tax returns. Nor will the measure affect the persona non grata status of same-sex couples in the eyes of the federal government.

"Marriage is this universally recognized concept with a whole host of benefits attendant upon it, including provisions of federal law," Steadman notes. "Colorado [same-sex] couples will not enjoy those."

That said, domestic partnerships would, in one swoop, confer many of the benefits and responsibilities of marriage, including inheritance rights and the primary authority to make medical decisions for an incapacitated mate. While some of these benefits can be patched together with separate legal documents, others cannot, Steadman says including the ability to collect worker's compensation survivor benefits and to adopt children as a couple.

Under current Colorado law, only one partner of a gay couple with children has legal standing as a parent. (An analysis of 2000 Census data estimates that almost 6,000 Colorado children were being raised by same-sex couples in 1999.)

"One of them [the biological or adopting parent] has parental rights and responsibilities, and the other person can bail," Steadman says. "If we create domestic partnerships, children of gay couples are some of the big winners. They will have economic security, greater access to health care, protection through pensions, Social Security and child support. ...

"Mr. Perkins is condemning these children to always being a child of a single parent, when there are two people who have made a commitment to that child in the first instance, and only one person the law can bind to that commitment."